Thursday, March 29, 2007
A Wall Street Journal editorial (here) asserts that the Senate Judiciary Committee hearing on the removal of eight U.S. Attorneys is really a "perjury trap" designed to set up the aides to Attorney General Alberto Gonzales subpoenaed to testify. The editorial argues that Judiciary Committee Chairman Leahy and other Democrats should not be surprised "if government officials decide they'd rather not step into this obvious perjury trap." In the context of grand jury investigations, the claim of a perjury trap is part of an argument seeking dismissal of charges on the ground that a prosecutor calling a person to testify with the knowledge that the witness may lie, creating the basis for a separate criminal prosecution, is an unacceptable use of the grand jury and violates the witness's due process rights. Of course, to be a good perjury trap, the witness must not be aware of the pitfall awaiting their false statements, and the prosecutor presumably knows the truth in setting up the witness. I'm not sure one can say that a perjury trap is being set if the Judiciary Committee does not know the truth in advance. That such traps have been set is certainly true -- note the impeachment charges against former President Clinton for perjury based on his grand jury testimony -- but they can be avoided if the witness tells the truth or asserts the Fifth Amendment. Monica Goodling, senior counsel to AG Gonzales, took the privilege route and avoided the trap, if there was one, although she may be subjected to the unseemly practice of being excoriated by Committee members for her decision. A Congressional committee can't really set a perjury trap because it does not control the decision whether prosecute the perjury case, which only the Department of Justice can do, although it can offer the bait.
Unlike Goodling, AG Gonzales' former chief of staff, Kyle Sampson, will testify and probably take the brunt of the questioning regarding inaccurate statements provided to Congress about the reasons for the U.S. Attorney firings. In prepared remarks (here courtesy of the Wall Street Journal), Sampson states that "[t]he distinction between 'political' and 'performance-related' reasons for removing a United States attorney is, in my view, largely artificial." It depends, of course, on what one means by "political." If "political" means favoring one party over another, then that statement would seem to contradict the idea that a prosecutor must dispense justice even-handedly. If the point is that following the President's law enforcement initiatives is important, and hence one must show "political" support, then there is a stronger basis for finding the distinction "artificial." The question is whether the decision to terminate the U.S. Attorneys was "political" in the latter sense when the so-called "performance" issues may have been a cover for the decision, particularly the removal of Bud Cummins from the Eastern District of Arkansas.
Senators will also focus on Sampson's e-mails, including a newly released set (here) in which he helps prepare a letter in response to Senators questioning the appointment of Cummins' replacement, Tim Griffin. In his e-mail dated February 8, 2007, drafted for the signature of Acting Assistant Attorney General Richard Hertling, Sampson wrote, "I am not aware of Karl Rove playing any role in the Attorney General's decision to appoint Griffin." That statement later appears in the letter delivered to Senate Majority Leader Harry Reid. Unfortunately, other e-mail traffic indicates White House involvement in the decision, including references to Rove. Needless to say, the Senators will have their long knives out, but whether we learn anything new from the hearing is an open question. According to Sampson, "This is a benign rather than sinister story," but that remains to be seen. (ph)